Police Law Blog European Decisions Statutory Materials

Decisions on disciplinary sanction must be properly structured

Police misconduct panels must explain their decisions on disciplinary outcome in a structured manner, referring to the seriousness of the misconduct, the purpose of disciplinary sanctions and the most appropriate sanction for the misconduct. The High Court has quashed a misconduct panel’s decision to impose a final written warning on the basis that the panel failed to do this: R (Chief Constable of Greater Manchester Police) v (1) Police Misconduct Panel (2) Roscoe (2018) Case no 698/2018.

The officer subject to the misconduct proceedings was alleged to have engaged in appropriate sexually behaviour towards a woman in her own home, after attending an incident nearby. He denied the allegations but the panel found them proven to the level of gross misconduct and turned to the issue of the disciplinary outcome. It announced its decision to impose a written warning in what HHJ Pelling QC described as a “single unnumbered paragraph”. It stated as follows:

The panel have considered the submissions made on behalf of PC Roscoe and on behalf of the appropriate authority. The panel has also applied the principles laid out in the guidance on outcomes in police misconduct proceedings. The panel wish to make clear that they consider the gross misconduct that has been found in this case to be serious. The aggravating features are as follows:

– The panel finds the behaviour displayed by PC Roscoe which forms the basis of the misconduct as found was opportunistic.

– It involved an abuse of trust although the panel accepts that there was no special position of trust in this case.

– PC Roscoe’s actions were deliberate.

– PC Roscoe has shown no evidence of remorse and made no admissions regarding his misconduct throughout these proceedings.

– The panel considered Ms R to have been vulnerable being on her own and under the influence of alcohol during the early hours of the morning although the panel accepts that she was not vulnerable within the definitions outlined in paragraph 4.49 of the guidelines.

– Ms R suffered some psychological impact as a result of the gross misconduct as found although there is no suggestion that she has suffered any serious harm as a result.

– The panel find that the police service will have suffered reputational harm as a result of these findings.

The mitigating factors

– There is no dispute that the conduct as alleged constitute a single episode and was brief in duration lasting only a few minutes.

– It was not in dispute that immediately that PC Roscoe realised that Ms R was not interested in his advances he backed away.

– The misconduct as alleged did not form part of an operational matter.

– The panel gave due regard to the character evidence provided on behalf of PC Roscoe.

– Save for the abuse of trust, which to be clear, the panel finds resultant from Ms R’s decision to allow PC Roscoe into her house only because he was a police officer. The panel accepts that there were no aggravating features indicating a high level of culpability or harm as outlined in paragraph 4.67 of the guidelines.

The panel considered the less serious sanction of a final written warning and then considered whether the gross misconduct was such that immediate dismissal was necessary but the panel find that the gross misconduct as found can only be described as serious. In light of all the above the panel find after applying the criteria outlined in paragraph 4.67 of the guidelines that a final written warning is appropriate in all[?] the circumstances. However the panel wish to make clear that immediate dismissal was seriously considered in this case but the mitigating factors as outlined persuaded the panel that a final written warning could be justified. …

Whilst it was apparent that the panel had considered aggravating and mitigating factors relevant to the seriousness of the conduct in question, HHJ Pelling QC held that the panel had failed to follow the three-stage approach of:

  1. Assessing the seriousness of the misconduct;
  1. Keeping in mind the purpose for which sanctions were imposed; and
  1. Choosing the sanction which most appropriately fulfilled that purpose in light of the seriousness of the conduct.

This approach, outlined in the Guidance and derived from Fuglers LLP v SRA [2014] EWHC 179 (Admin) per Popplewell J at [28], required the panel to have regard to the purpose of the misconduct proceedings, including the maintenance of public confidence in the profession: a factor of particular importance in policing, R (Green) v Police Complaints Authority [2004] UKHL 6; [2004] 1 WLR 725 per Lord Carswell at [78].

HHJ Pelling QC agreed with the claimant Chief Constable that the panel had unlawfully failed to follow the structured approach derived from Fugler: see [16] to [18]. The judge found there was nothing in the panel’s reasoning to show that it had, either expressly or in substance, applied that approach:

  1. The panel did not appear to have assessed how serious it found the misconduct to be by reference to the categories outlined in the Guidance (Culpability, Harm, and Aggravating and Mitigating Factors), rather than simply having found it to be “serious”; and
  1. The panel then failed to consider sanction “specifically by reference to the need to maintain public confidence in and the reputation of the police service, to uphold high standards, to deter misconduct and to protect the public”.

The decision was therefore quashed and remitted to the panel to reconsider the disciplinary outcome, applying the structured, three-stage approach outlined above (the court was not persuaded to substitute his own decision for that of the panel): [19]-[20]. A separate “unreasonableness” challenge was not determined.

Unintended consequences?

On one view, the misconduct panel simply failed to give adequate reasons for its decision on outcome. Its failure to mention the purpose for which outcomes are imposed, including the importance of maintaining public confidence in policing – emphasised throughout the Guidance – is striking. That said, many would regard this panel’s reasoning as more fulsome than many.

The judicial review was brought by a Chief Constable who sought the officer’s dismissal. However, HHJ Pelling QC’s detailed consideration of the Guidance and his criticism of the panel for failing to demonstrate that it had followed it may prove particularly useful to officers and forces seeking to challenge decisions on outcome, especially those which are poorly explained.

It is not uncommon for panels to give detailed reasons for finding but to explain the reasons for the disciplinary outcome more briefly. Panels must be careful, in future, not merely to rehearse that it has “applied the principles” laid out in the Guidance. They will need to take greater time to write out the detail of their decisions – possibly to the chagrin of the officers hanging upon them.

James Berry was counsel for the Chief Constable of the Greater Manchester Police.